Case Results

Philadelphia Detainer Lifted and Probation Continued

December 2016

"Mark" contacted me after he learned that his probation officer in Philadelphia lodged a "detainer" on him and issued a bench warrant for his arrest due to his violation of probation (also referred to as a "VOP"). (A detainer is to used to keep people who are supervised on probation or parole in custody pending a Gagnon I hearing, before a "Trial Commissioner" for a Philadelphia VOP for example, and a later Gagnon II hearing, also known as the VOP hearing, before the judge whose probation or parole the person is being supervised.)

Can a new arrest result in a detainer being issued for a person on probation in Philadelphia?

I assessed the Mark's situation and learned that he had been involved with a domestic matter in New Jersey where he lived (despite being supervised by the Philadelphia Probation Department). Despite having appeared in New Jersey Municipal Court, Mark was not clear as to what, if anything he was charged with in New Jersey related to the domestic incident with his former paramour. Mark had been doing well while on probation, but once his probation officer learned of the New Jersey issue, that is when the detainer was lodged and the bench warrant was issued. Mark was afraid to surrender himself to the Philadelphia Probation Department knowing that he would be detained (held in custody) pending the Gagnon I hearing at a minimum, and most likely remaining in custody until the Gagnon II hearing possibly a month or so later.

Who is the "back judge" in a violation of probation case?

I informed Mark that although I can supersede his probation officer's instructions for him to report to be detained, I could contact the Philadelphia District Attorney's Office, and ultimately, Mark's "back judge" (the judge whose probation Mark was being supervised in most instances) to see if they would be agreeable to an alternative resolution rather than Mark having to be detained and placed in custody most likely until the matter could be addressed in full at the VOP hearing. (It is possible to have a detainer "lifted" at a Gagnon I hearing although it is not easy. Such a decision would depend on a number of factors including the nature of the alleged violation of probation. Incurring a new arrest as was the case with Mark and then "absconding" by not reporting to the Philadelphia Probation Department would be reasons that it would be likely that the detainer would remain in "place" until the Gagnon II hearing before the back judge. In addition, some judges specifically prohibit detainers from being lifted at the Gagnon I hearing because those judges want to address the matter personally at the subsequent Gagnon II hearing).

Is a "motion" required to address a detainer or bench warrant in Philadelphia?

I drafted an comprehensive formal "motion" outlining Mark's circumstances including that fact that he had been compliant on probation up until the New Jersey incident. I included extensive mitigating evidence and documentation as to why Mark was deserving of a second chance. Despite my excellent relationship with the Philadelphia District Attorney's Office, the Office was not sympathetic to Mark's circumstances, and was therefore not receptive to my proposed solution to the issue (having the Mark's back judge lift the detainer and continue his probation without the need to take him into custody as Mark's probation officer wanted). Because the Philadelphia District Attorney's Office was not agreeable to my request, per my request, Mark's back judge scheduled a hearing on the matter.

Should the "agreement" of the Philadelphia District Attorney's Office be sought when trying to lift a detainer and continue probation?

On the date of the hearing, Mark was terrified to come to court. I explained to Mark that missing court, regardless of the supposed circumstances, would most likely be seen as a ploy by the judge and would result in a potentially worse result. I understood Mark's concern because there was the genuine prospect that, despite all of my efforts on his behalf to that point, the judge could take him into custody if he showed up at court. On the morning of court I spoke to the Assistant District Attorney (ADA) who was assigned to the particular courtroom on that given date. I explained the circumstances and what I was trying to do for Mark. To my surprise, the ADA was agreeable to my request and indicated that he would not oppose our request to have Mark's detainer lifted and probation continued. (The ADA in the courtroom was not the same ADA as who I had to contact for procedural reasons when I initially made my request on Mark's behalf to the Philadelphia District Attorney's Office.)

I had been in touch with Mark all morning while he wavered about coming to court. I explained what I was able to accomplish, and instructed him to get to court so that we could get his matter addressed and resolved (with the agreement from the Philadelphia District Attorney's Office). Mark eventually arrived at court with his parents much to my relief. (After accomplishing so much on Mark's behalf, I did not want to have our efforts thus far wasted by him failing to appear at court.)

How should the request to lift a detainer and vacate a bench warrant be presented to the judge?

After Mark arrived, I let the court staff know that we were ready to proceed at the judge's convenience. The court staff called the case and due to the sensitive nature of the circumstances, I asked to address the matter at "sidebar" with the judge. (At "sidebar" means that the judge, the Assistant District Attorney, and I speak privately off to the "side" of the judge's bench. The reason that the circumstances were sensitive is that, for all intents and purposes, I was asking the judge to overlook Mark's violation. Because of the nature of my request, I preferred to explain my request and the reasons behind it not in "open" court where, if other criminal defendants heard what I was trying to do on Mark's behalf, the judge may have been less inclined to grant my request if it could be perceived by others that she was going "easy" on Mark despite his probation violation.)

With these considerations in mind, I explained the circumstances to the judge. The judge was receptive to my efforts on Mark's behalf and did as we sought - She ordered the Philadelphia Probation Department to lift the detainer and to vacate the bench warrant that had been issued for Mark and she continued his probation. The judge did explain to Mark that this despite what I was able to accomplish for him, he should not expect such consideration in the future if any probation issues arose. I understand the judge's concerns that by affording such consideration without the necessary warning, Mark may have believed making the same mistake twice would result in a similar outcome. Due to my efforts on Mark's behalf and my negotiations with the Philadelphia District Attorney's Office, I am pleased that Mark was given a second chance. Such requests are not easy to accomplish in Philadelphia, but when presented it the proper fashion, lifting a detainer in advance of a defendant having to go into custody and having probation continued is possible.

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has nearly a decade of experience fighting for the futures of his clients in criminal courtrooms in Philadelphia, the Pennsylvania counties, as well as New Jersey. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being.

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